EWJ June 2024 web - Journal - Page 60
Challenging Testamentary Capacity & Undue
Influence in Will Disputes - Case Example
by Sophie McDonnell, Dispute resolution - www.boyesturner.com
A case has recently been heard in the County Court at
Central London, which resulted in a daughter succeeding in her claim that her late father’s will was invalid. The daughter was left out of her late father’s
will, and she challenged the validity of his will on the
basis that he lacked the requisite testamentary capacity in executing the same and/or did not know and/or
approve its contents and/or that her stepmother exerted undue influence on her father as regarding the
contents of the will. In this article, we explore the legal
foundation behind claims of testamentary capacity in
will disputes outlining the difficulties often associated
with contested wills.
testator had the necessary testamentary capacity to execute the will is likely to carry significant weight with
the court. This will therefore make any potential challenge to the will more difficult. In addition, it is likely
that an expert opinion from a medical practitioner as
regards the testator’s mental health would be
required.
Knowledge and approval
A testator must have known and approved the
contents of the will. The test for knowledge and approval is clear - did the testator understand (i) what
was in the will and (ii) what its effect would be at the
time of execution? If they are found to lack knowledge and approval, the will is therefore invalid.
The facts
The deceased was a 94-year-old millionaire who died
only 11 months after he married his carer, who was
39 years younger than him. Shortly after the marriage
he executed a new will which provided for his entire
estate to be left to his wife with no provision being
made for his adult daughter.
As with testamentary capacity, it is presumed that the
testator did know and approve of the will’s contents if
there has been due execution of the will, the testator
had testamentary capacity to make it and, on its face,
the will appears to be rational. However, some circumstances surrounding the execution of the will
could be suspicious.
The outcome of this case is interesting to see, considering the difficult steps disappointed beneficiaries
need to prove in a claim of this nature.
Such suspicious circumstances may include:
l when the beneficiaries named in the will are unexpected or the will significantly differs from prior wills.
l unusual or complex provisions in a will that are
inconsistent with the testator’s prior wishes.
l the will contains spelling mistakes and uses
language which the testator would not have
understood.
l the will contains untrue statements.
l the will is homemade, and no professional advice
has been obtained.
The law on valid wills
As well as complying with the formal provisions of
Section 9 of the Wills Act 1837, for a will to be valid the
testator must have the requisite testamentary capacity
to execute a will at the time of execution. In addition,
a testator must know and approve of the contents of
the will, and it must reflect their wishes and not, for
example, be influenced by other persons.
Testing for testamentary capacity
The common law test for assessing testamentary
capacity was set out in the case of Banks v Goodfellow
1870, which provides that the testator must:
l Understand the nature and effects of making a will.
l Understand the extent of his or her assets they are
disposing of under the will.
l Understand and appreciate the claims to which
they should give effect; and
l Not suffer from any “disorder of the mind” that
perverts their sense of right or prevents the exercise of
their natural faculties in disposing of their assets by
the will.
Each case will turn on its own facts but as with
testamentary capacity, it will be harder for any will prepared by a lawyer or a professional will writer to be
challenged, particularly if the will drafter has read
over the contents of the will to the testator and
satisfied themselves that the contents meet with the
testator’s approval.
Undue influence claims
Challenging the validity of a will on the basis of undue
influence requires a finding that someone has exerted
pressure or coercion or even manipulation by one
person to influence the testator’s decision regarding
their will.
A testator’s testamentary capacity is presumed. That
presumption can, however, be rebutted if the contents
of the will are such as to excite the court’s suspicion.
As with lack of knowledge and approval, each case will
turn on its own facts, but some common factors which
may give rise to undue influence are as follows:
l Was the testator isolated from support from friends
or family?
If a will is prepared by a lawyer or a professional will
writer, they should satisfy themselves that the testator
understands and is able to execute the will – the socalled Golden Rule. As they have a more stringent role
of assessing a testator’s testamentary capacity and
keeping a full note of their assessment and the testator’s instructions, any statement to the court that the
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l Was the testator dependent on someone albeit for
care or companionship which they may feel obliged
to comply with their wishes?
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JUNE 2024